Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions, 17548-17556 [2011-6670]

Download as PDF 17548 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations except for claims over which the Board has original jurisdiction. (c) Remand for a Statement of the Case. In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case in accordance with the provisions of subpart B of this part. A remand for a Statement of the Case is not required if the claimant, consistent with the withdrawal requirements of § 20.204 of this chapter, withdraws the Notice of Disagreement. (d) Exceptions. A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes: (1) Clarifying a procedural matter before the Board, including the appellant’s choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board; (2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions; (3) Reviewing additional evidence received by the Board, if, pursuant to § 20.1304(c) of this chapter, the appellant or the appellant’s representative waives the right to initial consideration by the agency of original jurisdiction, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal; (4) Requesting an opinion under § 20.901 of this chapter; (5) Supplementing the record with a recognized medical treatise; or (6) Considering a matter over which the Board has original jurisdiction. (Authority: 38 U.S.C. 7102, 7103(c), 7104(a), 7105). PART 20—BOARD OF VETERANS’ APPEALS: RULES OF PRACTICE The revisions read as follows: § 20.903 Rule 903. Notification of evidence to be considered by the Board and opportunity for response. * * * * * (b) If the Board supplements the record with a recognized medical treatise—(1) General. If, pursuant to § 19.9(d)(5) of this chapter, the Board supplements the record with a recognized medical treatise, the Board will notify the appellant and his or her representative, if any, that the Board will consider such recognized medical treatise in the adjudication of the appeal. The notice from the Board will contain a copy of the relevant portions of the recognized medical treatise. The appellant will be given 60 days after the date of the notice described in this section to file a response, which may include the submission of relevant evidence or argument. The date the Board gives the notice will be presumed to be the same as the date of the notice letter for purposes of determining whether a response was timely filed. (2) Exception. The notice described in paragraph (b)(1) of this section is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board’s disposition of the appeal. 5. In § 20.1304, revise paragraph (b)(2) to read as follows: ■ § 20.1304 Rule 1304. Request for change in representation, request for personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals. * * * * * (b) * * * (2) Exception. The motion described in paragraph (b)(1) of this section is not required to submit evidence in response to a notice described in § 20.903 of this chapter. * * * * * [FR Doc. 2011–7395 Filed 3–29–11; 8:45 am] BILLING CODE 8320–01–P 3. The authority citation for part 20 continues to read as follows: WReier-Aviles on DSKGBLS3C1PROD with RULES ■ Authority: 38 U.S.C. 501(a) and as noted in specific sections. Subpart J—Action by the Board ■ ■ ■ 4. Amend § 20.903 by: a. Revising the section heading. b. Revising paragraph (b). VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA–HQ–OAR–2004–0014: FRL–9280–8] RIN 2060–AQ73 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions Environmental Protection Agency (EPA). ACTION: Interim rule; stay and revisions. AGENCY: EPA is taking an interim action to effectuate and extend a stay of the final rule entitled ‘‘Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions’’ (‘‘Fugitive Emissions Rule’’) published in the Federal Register on December 19, 2008. The Fugitive Emissions Rule under the Federal NSR program required that fugitive emissions be included in determining whether a physical or operational change results in a major modification only for sources in designated industries. EPA issued a stay of the Fugitive Emissions Rule on March 31, 2010, that was effective for 18 months through October 3, 2011. This action supersedes the stay and thereby corrects potential confusion caused by that stay. To effectuate a stay of the Fugitive Emissions Rule, this action clarifies the stay and the revisions of specific paragraphs in the NSR regulations that were affected by the Fugitive Emissions Rule. This action also extends the stay until EPA completes its reconsideration of the Fugitive Emissions Rule. DATES: Effective date: This interim rule is effective March 30, 2011. The administrative stay of provisions in 40 CFR 51.165, 51.166, Appendix S to part 51, and 40 CFR 52.21 published on March 31, 2010 (75 FR 16012) is lifted; and The following Code of Federal Regulations sections are stayed indefinitely: 40 CFR 51.165(a)(1)(v)(G) and (a)(1)(vi)(C)(3); 51.166(b)(2)(v) and (b)(3)(iii)(d); Appendix S to Part 51, Paragraph II.A.5(vii); and 52.21(b)(2)(v) and (b)(3)(iii)(c). The EPA will publish a document in the Federal Register lifting this stay. Comment date: Comments must be received on or before April 29, 2011. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– SUMMARY: E:\FR\FM\30MRR1.SGM 30MRR1 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations OAR–2004–0014, by one of the following methods: • http://www.regulations.gov. Follow the online instructions for submitting comments. • E-mail: a-and-r-docket@epa.gov. • Fax: (202) 566–1741. • Mail: Air and Radiation Docket, Environmental Protection Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. • Hand Delivery: EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to the applicable docket. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http:// www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http:// www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the http:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http:// www.regulations.gov or in hard copy at the EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1742, and the telephone number for the Air Docket is (202) 566–1744. Mr. Peter Keller, Air Quality Policy Division, (C504–03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number (919) 541–5339; fax number (919) 541–5509; or e-mail address: keller.peter@epa.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? Entities potentially affected by this action include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups. SIC a Industry group 17549 Electric Services .................................................................................................................... 491 Petroleum Refining ................................................................................................................ Industrial Inorganic Chemicals .............................................................................................. 291 281 Industrial Organic Chemicals ................................................................................................ 286 Miscellaneous Chemical Products ........................................................................................ 289 Natural Gas Liquids ............................................................................................................... Natural Gas Transport ........................................................................................................... Pulp and Paper Mills ............................................................................................................. Paper Mills ............................................................................................................................. Automobile Manufacturing ..................................................................................................... 132 492 261 262 371 Pharmaceuticals .................................................................................................................... Mining .................................................................................................................................... Agriculture, Fishing and Hunting ........................................................................................... 283 211, 212, 213 111, 112, 113, 115 NAICS b 221111, 221112, 221113, 221119, 221121, 221122 324110 325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188 325110, 325132, 325192, 325188, 325193, 325120, 325199 325520, 325920, 325910, 325182, 325510 211112 486210, 221210 322110, 322121, 322122, 322130 322121, 322122 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350, 336399, 336212, 336213 325411, 325412, 325413, 325414 21 11 a Standard WReier-Aviles on DSKGBLS3C1PROD with RULES b North Industrial Classification American Industry Classification System. Entities potentially affected by this action also include state, local, and tribal governments. B. What should I consider as I prepare my comments for EPA? 1. Submitting CBI. Do not submit information containing CBI to EPA VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 through http://www.regulations.gov or e-mail. Send or deliver information identified as CBI only to the following address: Mr. Roberto Morales, OAQPS Document Control Officer (C404–02), U.S. EPA, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention: Docket PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 ID EPA–HQ–OAR–2004–0014. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is E:\FR\FM\30MRR1.SGM 30MRR1 17550 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments. When submitting your comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). • Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this interim rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this interim rule will be posted in the regulations and standards section of our NSR home page located at http:// www.epa.gov/nsr. WReier-Aviles on DSKGBLS3C1PROD with RULES D. How is this preamble organized? I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for EPA? C. Where can I get a copy of this document and other related information? D. How is this preamble organized? II. Background Information III. This Action A. Why is EPA staying, reinstating, or revising, as appropriate, the regulatory text in specific paragraphs affected by the Fugitive Emissions Rule? B. Why is EPA issuing an interim rule? C. What specific revisions are being made? IV. Fugitive Emissions Rule Reconsideration VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act VI. Statutory Authority II. Background Information On December 19, 2008, EPA (‘‘we’’) issued a final rule revising the requirements of the major NSR programs regarding the treatment of fugitive emissions (‘‘Fugitive Emissions Rule’’) 73 FR 77882. The final rule required fugitive emissions to be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j) of the Clean Air Act (Act or CAA). Previously, EPA rules required that fugitive emissions be included in major modification applicability determinations for all source categories. The final rule amended all portions of the major NSR program regulations: Permit requirements, the PSD program, and the emission offset interpretive ruling. On February 17, 2009, the Natural Resources Defense Council (NRDC) submitted a petition for reconsideration of the December 2008 final rule as provided for in CAA 307(d)(7)(B).1 On April 24, 2009, we responded to the February 17, 2009, petition by letter indicating that we were convening a reconsideration proceeding for the December 2008 rule on inclusion of fugitive emissions challenged in the petition and granting a 3-month administrative stay of the rule contained in the federal NSR program at 40 CFR parts 51 and 52. The letter also indicated that we would publish a notice of proposed rulemaking ‘‘in the near future’’ to address the specific 1 John Walke, NRDC, EPA–HQ–OAR–2004–0014– 0060. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 issues for which we were granting reconsideration.2 The initial 3-month administrative stay of the Fugitive Emissions Rule became effective on September 30, 2009. See 74 FR 50115. An interim final rule extending the stay for an additional 3 months became effective on December 31, 2009. See 74 FR 65692. An additional 18 month stay was finalized on March 31, 2010, and ends on October 3, 2011. See 75 FR 16012. That stay was put in place to allow sufficient time for EPA to propose, take public comment on, and issue a final action concerning the inclusion of fugitive emissions in the Federal NSR program. III. This Action A. Why is EPA staying, reinstating, or revising, as appropriate, the regulatory text in specific paragraphs affected by the Fugitive Emissions Rule? The initial stay of the Fugitive Emissions Rule, put in place on September 30, 2009, may have caused confusion as to the scope of the stay. In staying the Fugitive Emissions Rule, EPA reinstated the NSR regulations as they existed prior to the Fugitive Emissions Rule. In particular, we stated: ‘‘To effectuate this stay of the December 19, 2008, rule, we are reinstating previous provisions on a temporary basis.’’ See 74 FR at 50115–16. In several cases, however, paragraphs of the affected regulations in 40 CFR 51.165, 40 CFR 51.166, 40 CFR 51 Appendix S, and 40 CFR 52.21 appeared to be stayed in their entirety rather than amended to undo the changes made by the Fugitive Emissions Rule as intended. The subsequent extensions of the stay used the same terms as the stay published on September 30, 2009, and accordingly did not correct the ambiguity created by the original promulgation of the stay. This action clarifies the regulations to accurately reflect EPA’s intent to revert back to the regulation text that existed prior to the Fugitive Emissions Rule amendments to the Federal NSR regulations. B. Why is EPA issuing an interim rule? We are issuing an interim rule to effectuate a stay of the Fugitive Emissions Rule. This interim rule supersedes the stay issued on March 31, 2010, and thereby corrects ambiguity contained in that stay. EPA is using the ‘‘good cause’’ exemption under the Administrative Procedure Act (APA) to take the actions set forth in this interim rule without prior notice and comment. See 5 U.S.C. 553(b)(3)(B). Section 553(b) 2 Lisa Jackson, US EPA, EPA–HQ–OAR–2004– 0014–0062. E:\FR\FM\30MRR1.SGM 30MRR1 WReier-Aviles on DSKGBLS3C1PROD with RULES Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations of the APA generally requires that any rule to which it applies be issued only after the public has received notice of, and had an opportunity to comment on, the proposed rule. However, section 553(b)(3)(B) exempts from those requirements any rule for which the issuing agency for good cause finds that providing prior notice and comment would be impracticable, unnecessary, or contrary to the public interest. Thus, any rule for which EPA makes such a finding is exempt from the notice and comment requirements of section 553(b). We believe that the circumstances here provide good cause to take the actions set forth in this interim rule without prior notice and comment, because providing prior notice and comment would be unnecessary and contrary to the public interest. With this action, EPA is simply staying the provisions of the Fugitive Emissions Rule consistent with our original intent, which we believe was broadly understood. We believe that soliciting public comment on this interim rule prior to making it effective would be contrary to the public interest because it is in the public interest to correct the ambiguity contained in the current stay as expeditiously as possible to avoid potential confusion regarding the regulatory text. The NSR program is a vital component of the Act’s regime for protecting public health, and it is in the public’s interest that the requirements of the program be clear and unambiguous. EPA is also using the APA’s good cause exception to make this interim rule immediately effective. See 5 U.S.C. 553(d)(3). Section 553(d) of the APA generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. However, section 553(d)(3) provides that if the issuing agency has made a finding of good cause and has published its reasoning with the rule, the rule may take effect earlier. EPA has determined that good cause exists to stay, reinstate, and revise, as appropriate, certain paragraphs in 40 CFR parts 51 and 52 by interim rule without prior notice and comment, because prior notice and comment would be unnecessary and contrary to the public interest for the reasons stated above. Based on this determination, EPA is making this interim rule effective immediately. Notwithstanding EPA’s ‘‘good cause’’ finding, we are providing a 30-day public comment period for this interim rule, and upon reviewing and considering comments received, we will issue a final rule either affirming the VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 17551 interim rule or affirming the interim rule with revisions. action is not subject to review under EO 12866. C. What specific revisions are being made? B. Paperwork Reduction Act We are issuing this interim rule to: • Stay the following paragraphs: 40 CFR 51.165(a)(1)(v)(G) and (a)(1)(vi)(C)(3), 40 CFR 51.166(b)(2)(v) and (b)(3)(iii)(d), 40 CFR 51 Appendix S II.A.5(vii), and 40 CFR 52.21 (b)(2)(v) and (b)(3)(iii)(c); • Reinstate the following paragraphs: 40 CFR 51.165(a)(4), 40 CFR 51.166(i)(1)(ii), 40 CFR 51 Appendix S II.F, and 40 CFR 52.21(i)(1)(vii); and • Revise the following paragraphs to revert back to the regulatory text that existed prior to the Fugitive Emissions Rule amendments: 40 CFR 51.165(a)(1)(ix), (a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), (a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166(a)(7)(iv)(b), (b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii), (r)(6)(iv), and (w)(4)(i)(d); 40 CFR 51 Appendix S II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d); and 40 CFR 52.21(a)(2)(iv)(b), (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d). The overall effect of this action is to revert the treatment of fugitive emissions in applicability determinations to the approach that applied prior to the Fugitive Emissions Rule on an interim basis, while EPA completes the reconsideration. IV. Fugitive Emissions Rule Reconsideration V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), because it does not raise novel legal or policy issues. Accordingly, this Frm 00031 Fmt 4700 Sfmt 4700 C. Regulatory Flexibility Act This interim rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because, although the rule is subject to the APA, the Agency has invoked the ‘‘good cause’’ exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice and comment requirement. D. Unfunded Mandates Reform Act Following the public comment period, EPA will issue a final rule either affirming the interim rule or affirming the interim rule with changes. The final rule will be in effect until EPA completes its reconsideration of the Fugitive Emissions Rule. We intend to propose and finalize a rule based on the results of the reconsideration by October 4, 2012. PO 00000 This action does not impose any new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This action only corrects inadvertent errors in the existing stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions and further stays the regulations until EPA completes its reconsideration. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR parts 51 and 52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060– 0003. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for state, local, or tribal governments or the private sector. This action only corrects inadvertent errors in the existing stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions and further stays the regulations until EPA completes its reconsideration. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. E:\FR\FM\30MRR1.SGM 30MRR1 17552 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. This action only corrects inadvertent errors in the existing stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions and further stays the regulations until EPA completes its reconsideration. Thus, EO 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in EO 13175 (65 FR 67249, November 9, 2000). This action will not impose any new obligations or enforceable duties on tribal governments. Thus, EO 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. WReier-Aviles on DSKGBLS3C1PROD with RULES H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to EO 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this interim rule will not have disproportionately high and adverse human health or environmental effects on minority or low income populations because it only corrects inadvertent errors in the existing stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions and further stays the regulations until EPA completes its reconsideration. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement, 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of March 30, 2011. EPA will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). VI. Statutory Authority The statutory authority for this action is provided by section 301(a) of the CAA as amended (42 U.S.C. 7601(a)). List of Subjects 40 CFR Part 51 Administrative practices and procedures, Air pollution control, Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile organic compounds. 40 CFR Part 52 Administrative practices and procedures, Air pollution control, Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile organic compounds. Dated: March 10, 2011. Lisa P. Jackson, Administrator. For the reasons stated in the preamble, 40 CFR parts 51 and 52 are amended as follows: PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: ■ Authority: 23 U.S.C. 101; 42 U.S.C. 7401— 7671q. 2. Section 51.165 is amended as follows: ■ a. The stay of § 51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), (a)(6)(iv), and (f)(4)(i)(D), published on March 31, 2010 (75 FR 16012), is lifted. ■ b. Paragraphs (a)(1)(ix), (a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), and (a)(1)(xxxv)(D) are revised. ■ c. Paragraph (a)(2)(ii)(B) is revised. ■ d. Temporary paragraph (a)(4), is removed. ■ e. A new paragraph (a)(4), is added. ■ f. Paragraphs (a)(6)(iii) and (a)(6)(iv) are revised. ■ g. Paragraph (f)(4)(i)(D) is revised. ■ h. Paragraphs (a)(1)(v)(G) and (a)(1)(vi)(C)(3) are stayed. ■ E:\FR\FM\30MRR1.SGM 30MRR1 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations WReier-Aviles on DSKGBLS3C1PROD with RULES § 51.165 Permit requirements. (a) * * * (1) * * * (ix) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening. * * * * * (xxviii) * * * (B) * * * (2) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and * * * * * (4) In lieu of using the method set out in paragraphs (a)(1)(xxviii)(B)(1) through (3) of this section, may elect to use the emissions unit’s potential to emit, in tons per year, as defined under paragraph (a)(1)(iii) of this section. * * * * * (xxxv) * * * (A) * * * (1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (B) * * * (1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (C) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit. (D) For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(A) of this section, for other existing emissions units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(B) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph (a)(1)(xxxv)(C) of this section. * * * * * (2) * * * (ii) * * * (B) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 according to paragraphs (a)(2)(ii)(C) through (F) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph (a)(1)(vi) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase. * * * * * (4) Each plan may provide that the provisions of this paragraph do not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories: (i) Coal cleaning plants (with thermal dryers); (ii) Kraft pulp mills; (iii) Portland cement plants; (iv) Primary zinc smelters; (v) Iron and steel mills; (vi) Primary aluminum ore reduction plants; (vii) Primary copper smelters; (viii) Municipal incinerators capable of charging more than 250 tons of refuse per day; (ix) Hydrofluoric, sulfuric, or citric acid plants; (x) Petroleum refineries; (xi) Lime plants; (xii) Phosphate rock processing plants; (xiii) Coke oven batteries; (xiv) Sulfur recovery plants; (xv) Carbon black plants (furnace process); (xvi) Primary lead smelters; (xvii) Fuel conversion plants; (xviii) Sintering plants; (xix) Secondary metal production plants; (xx) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140; (xxi) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (xxii) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (xxiii) Taconite ore processing plants; (xxiv) Glass fiber processing plants; (xxv) Charcoal production plants; PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 17553 (xxvi) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (xxvii) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act. * * * * * (6) * * * (iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in paragraph (a)(6)(i)(B) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit. (iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (a)(6)(iii) of this section setting out the unit’s annual emissions during the year that preceded submission of the report. * * * * * (f) * * * (4) * * * (i) * * * (D) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source. * * * * * ■ 3. Section 51.166 is amended as follows: ■ a. The stay of § 51.166(a)(7)(iv)(b), (b)(2)(v), (b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted. ■ b. Paragraph (a)(7)(iv)(b) is revised. ■ c. Paragraphs (b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), and (b)(47)(iv) are revised. ■ d. Temporary paragraph (i)(1)(ii) is removed. ■ e. A new paragraph (i)(1)(ii) is added. ■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised. ■ g. Paragraph (w)(4)(i)(d) is revised. ■ h. Paragraphs (b)(2)(v) and (b)(3)(iii)(d) are stayed. E:\FR\FM\30MRR1.SGM 30MRR1 17554 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations WReier-Aviles on DSKGBLS3C1PROD with RULES § 51.166 Prevention of significant deterioration of air quality. (a) * * * (7) * * * (iv) * * * (b) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(7)(iv)(c) through (f) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph (b)(3) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase. * * * * * (b) * * * (3) * * * (iii) * * * (c) The increase or decrease in emissions did not occur at a Clean Unit, except as provided in paragraphs (t)(8) and (u)(10) of this section. * * * * * (20) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. * * * * * (40) * * * (ii) * * * (b) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and * * * * * (d) In lieu of using the method set out in paragraphs (b)(40)(ii)(a) through (c) of this section, may elect to use the emissions unit’s potential to emit, in tons per year, as defined under paragraph (b)(4) of this section. * * * * * (47) * * * (i) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (ii) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 (iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit. (iv) For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (b)(47)(i) of this section, for other existing emissions units in accordance with the procedures contained in paragraph (b)(47)(ii) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph (b)(47)(iii) of this section. * * * * * (i) * * * (1) * * * (ii) The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and such source does not belong to any of the following categories: (a) Coal cleaning plants (with thermal dryers); (b) Kraft pulp mills; (c) Portland cement plants; (d) Primary zinc smelters; (e) Iron and steel mills; (f) Primary aluminum ore reduction plants; (g) Primary copper smelters; (h) Municipal incinerators capable of charging more than 250 tons of refuse per day; (i) Hydrofluoric, sulfuric, or nitric acid plants; (j) Petroleum refineries; (k) Lime plants; (l) Phosphate rock processing plants; (m) Coke oven batteries; (n) Sulfur recovery plants; (o) Carbon black plants (furnace process); (p) Primary lead smelters; (q) Fuel conversion plants; (r) Sintering plants; (s) Secondary metal production plants; (t) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140; (u) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 (v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (w) Taconite ore processing plants; (x) Glass fiber processing plants; (y) Charcoal production plants; (z) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (aa) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act; or * * * * * (r) * * * (6) * * * (iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph (r)(6)(i)(b) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit. (iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (r)(6)(iii) of this section setting out the unit’s annual emissions during the calendar year that preceded submission of the report. * * * * * (w) * * * (4) * * * (i) * * * (d) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source. * * * * * ■ 4. Appendix S. to Part 51 is amended as follows: ■ a. The stay of appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), II.A. 30(i)(a), II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) published on March 31, 2010 (75 FR 16012) is lifted. ■ b. Paragraphs II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), and II.A.30(iv) are revised. ■ c. Temporary paragraph II.F is removed. ■ d. A new paragraph II.F is added. E:\FR\FM\30MRR1.SGM 30MRR1 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations e. Paragraphs IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) are revised. ■ f. Paragraph II.A.5(vii) is stayed. ■ Appendix S to Part 51—Emission Offset Interpretative Ruling * * * * * II. * * * A. * * * 6. * * * (iii) An increase or decrease in actual emissions is creditable only if the reviewing authority has not relied on it in issuing a permit for the source under this Ruling, which permit is in effect when the increase in actual emissions from the particular change occurs. * * * * * 9. Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. * * * * * 24. * * * (ii) * * * (b) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and * * * * * (d) In lieu of using the method set out in paragraphs II.A.24(ii)(a) through (c) of this Ruling, may elect to use the emissions unit’s potential to emit, in tons per year, as defined under paragraph II.A.3 of this Ruling. * * * * * 30. * * * (i) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (ii) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. WReier-Aviles on DSKGBLS3C1PROD with RULES * * * * * (iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit. (iv) For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph II.A.30(i) of this Ruling, for other existing emissions units in accordance with the procedures contained in paragraph II.A.30(ii) of this Ruling, and for a new emissions unit in accordance with the procedures contained in paragraph II.A.30(iii) of this Ruling. * * * * * F. Fugitive emission sources. Section IV.A. of this Ruling shall not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 considered in calculating the potential to emit of the stationary source or modification and such source does not belong to any of the following categories: (1) Coal cleaning plants (with thermal dryers); (2) Kraft pulp mills; (3) Portland cement plants; (4) Primary zinc smelters; (5) Iron and steel mills; (6) Primary aluminum ore reduction plants; (7) Primary copper smelters; (8) Municipal incinerators capable of charging more than 250 tons of refuse per day; (9) Hydrofluoric, sulfuric, or nitric acid plants; (10) Petroleum refineries; (11) Lime plants; (12) Phosphate rock processing plants; (13) Coke oven batteries; (14) Sulfur recovery plants; (15) Carbon black plants (furnace process); (16) Primary lead smelters; (17) Fuel conversion plants; (18) Sintering plants; (19) Secondary metal production plants; (20) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140; (21) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (22) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (23) Taconite ore processing plants; (24) Glass fiber processing plants; (25) Charcoal production plants; (26) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (27) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act. * * * * * IV. * * * I. * * * 1. * * * (ii) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs IV.I.1(iii) through (v) of this Ruling. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph II.A.6 of this Ruling. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase. * * * * * J. * * * 3. The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in paragraph IV.J.1(ii) of this PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 17555 Ruling; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit. 4. If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year, during which records must be generated under paragraph IV.J.3 of this Ruling setting out the unit’s annual emissions during the year that preceded submission of the report. * * * * * K. * * * 4. * * * (i) * * * (d) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source. * * * * * PART 52—[AMENDED] 5. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. 6. Section 52.21 is amended as follows: ■ a. The stay of § 52.21 (a)(2)(iv)(b), (b)(2)(v), (b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted. ■ b. Paragraph (a)(2)(iv)(b) is revised. ■ c. Paragraphs (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv) are revised. ■ d. Temporary paragraph (i)(1)(vii) is removed. ■ e. A new paragraph (i)(1)(vii) is added. ■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised. ■ g. Paragraph (aa)(4)(i)(d) is revised. ■ h. Paragraphs (b)(2)(v) and (b)(3)(iii)(c) are stayed. ■ § 52.21 Prevention of significant deterioration of air quality. (a) * * * (2) * * * (iv) * * * (b) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(2)(iv)(c) through (f) of this section. The procedure for calculating (before E:\FR\FM\30MRR1.SGM 30MRR1 WReier-Aviles on DSKGBLS3C1PROD with RULES 17556 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph (b)(3) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase. * * * * * (b) * * * (3) * * * (iii) * * * (b) The increase or decrease in emissions did not occur at a Clean Unit except as provided in paragraphs (x)(8) and (y)(10) of this section. * * * * * (20) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. * * * * * (41) * * * (ii) * * * (b) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and * * * * * (d) In lieu of using the method set out in paragraphs (a)(41)(ii)(a) through (c) of this section, may elect to use the emissions unit’s potential to emit, in tons per year, as defined under paragraph (b)(4) of this section. * * * * * (48) * * * (i) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (ii) * * * (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. * * * * * (iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit. (iv) For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (b)(48)(i) of this section, for VerDate Mar<15>2010 12:55 Mar 29, 2011 Jkt 223001 other existing emissions units in accordance with the procedures contained in paragraph (b)(48)(ii) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph (b)(48)(iii) of this section. * * * * * (i) * * * (1) * * * (vii) The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories: (a) Coal cleaning plants (with thermal dryers); (b) Kraft pulp mills; (c) Portland cement plants; (d) Primary zinc smelters; (e) Iron and steel mills; (f) Primary aluminum ore reduction plants; (g) Primary copper smelters; (h) Municipal incinerators capable of charging more than 250 tons of refuse per day; (i) Hydrofluoric, sulfuric, or nitric acid plants; (j) Petroleum refineries; (k) Lime plants; (l) Phosphate rock processing plants; (m) Coke oven batteries; (n) Sulfur recovery plants; (o) Carbon black plants (furnace process); (p) Primary lead smelters; (q) Fuel conversion plants; (r) Sintering plants; (s) Secondary metal production plants; (t) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140; (u) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (w) Taconite ore processing plants; (x) Glass fiber processing plants; (y) Charcoal production plants; (z) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (aa) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act; or * * * * * PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 (r) * * * (6) * * * (iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph (r)(6)(i)(b) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit that regulated NSR pollutant at such emissions unit. (iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the Administrator within 60 days after the end of each year during which records must be generated under paragraph (r)(6)(iii) of this section setting out the unit’s annual emissions during the calendar year that preceded submission of the report. * * * * * (aa) * * * (4) * * * (i) * * * (d) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source. * * * * * [FR Doc. 2011–6670 Filed 3–29–11; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA–HQ–OPP–2010–0097; FRL–8867–7] Sodium Ferric Ethylenediaminetetraacetate; Exemption From the Requirement of a Tolerance Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This regulation establishes an exemption from the requirement of a tolerance for residues of sodium ferric ethylenediaminetetraacetate (EDTA) in or on all food commodities when applied as a molluscicide and used in accordance with good agricultural practices. W. Neudorff GmbH KG submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from SUMMARY: E:\FR\FM\30MRR1.SGM 30MRR1

Agencies

[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Rules and Regulations]
[Pages 17548-17556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6670]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2004-0014: FRL-9280-8]
RIN 2060-AQ73


Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Reconsideration of Inclusion of Fugitive 
Emissions; Interim Rule; Stay and Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim rule; stay and revisions.

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SUMMARY: EPA is taking an interim action to effectuate and extend a 
stay of the final rule entitled ``Prevention of Significant 
Deterioration (PSD) and Nonattainment New Source Review (NSR): 
Reconsideration of Inclusion of Fugitive Emissions'' (``Fugitive 
Emissions Rule'') published in the Federal Register on December 19, 
2008. The Fugitive Emissions Rule under the Federal NSR program 
required that fugitive emissions be included in determining whether a 
physical or operational change results in a major modification only for 
sources in designated industries. EPA issued a stay of the Fugitive 
Emissions Rule on March 31, 2010, that was effective for 18 months 
through October 3, 2011. This action supersedes the stay and thereby 
corrects potential confusion caused by that stay. To effectuate a stay 
of the Fugitive Emissions Rule, this action clarifies the stay and the 
revisions of specific paragraphs in the NSR regulations that were 
affected by the Fugitive Emissions Rule. This action also extends the 
stay until EPA completes its reconsideration of the Fugitive Emissions 
Rule.

DATES: Effective date: This interim rule is effective March 30, 2011.
    The administrative stay of provisions in 40 CFR 51.165, 51.166, 
Appendix S to part 51, and 40 CFR 52.21 published on March 31, 2010 (75 
FR 16012) is lifted; and
    The following Code of Federal Regulations sections are stayed 
indefinitely: 40 CFR 51.165(a)(1)(v)(G) and (a)(1)(vi)(C)(3); 
51.166(b)(2)(v) and (b)(3)(iii)(d); Appendix S to Part 51, Paragraph 
II.A.5(vii); and 52.21(b)(2)(v) and (b)(3)(iii)(c). The EPA will 
publish a document in the Federal Register lifting this stay.
    Comment date: Comments must be received on or before April 29, 
2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-

[[Page 17549]]

OAR-2004-0014, by one of the following methods:
     http://www.regulations.gov. Follow the online instructions 
for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Environmental Protection 
Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to the applicable docket. EPA's 
policy is that all comments received will be included in the public 
docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center, Public 
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1742, and the 
telephone number for the Air Docket is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. Peter Keller, Air Quality Policy 
Division, (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711; telephone number (919) 541-5339; fax number 
(919) 541-5509; or e-mail address: keller.peter@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include sources in all 
industry groups. The majority of sources potentially affected are 
expected to be in the following groups.

----------------------------------------------------------------------------------------------------------------
           Industry group                      SIC \a\                              NAICS \b\
----------------------------------------------------------------------------------------------------------------
Electric Services..................  491                         221111, 221112, 221113, 221119, 221121, 221122
Petroleum Refining.................  291                         324110
Industrial Inorganic Chemicals.....  281                         325181, 325120, 325131, 325182, 211112, 325998,
                                                                  331311, 325188
Industrial Organic Chemicals.......  286                         325110, 325132, 325192, 325188, 325193, 325120,
                                                                  325199
Miscellaneous Chemical Products....  289                         325520, 325920, 325910, 325182, 325510
Natural Gas Liquids................  132                         211112
Natural Gas Transport..............  492                         486210, 221210
Pulp and Paper Mills...............  261                         322110, 322121, 322122, 322130
Paper Mills........................  262                         322121, 322122
Automobile Manufacturing...........  371                         336111, 336112, 336211, 336992, 336322, 336312,
                                                                  336330, 336340, 336350, 336399, 336212, 336213
Pharmaceuticals....................  283                         325411, 325412, 325413, 325414
Mining.............................  211, 212, 213               21
Agriculture, Fishing and Hunting...  111, 112, 113, 115          11
----------------------------------------------------------------------------------------------------------------
\a\ Standard Industrial Classification
\b\ North American Industry Classification System.

    Entities potentially affected by this action also include state, 
local, and tribal governments.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit information containing CBI to EPA 
through http://www.regulations.gov or e-mail. Send or deliver 
information identified as CBI only to the following address: Mr. 
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, 
Office of Air Quality Planning and Standards, Research Triangle Park, 
North Carolina 27711, Attention: Docket ID EPA-HQ-OAR-2004-0014. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is

[[Page 17550]]

claimed as CBI. In addition to one complete version of the comment that 
includes information claimed as CBI, a copy of the comment that does 
not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for Preparing Your Comments. When submitting your comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this interim rule will also be available on the World Wide Web. 
Following signature by the EPA Administrator, a copy of this interim 
rule will be posted in the regulations and standards section of our NSR 
home page located at http://www.epa.gov/nsr.

D. How is this preamble organized?

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. How is this preamble organized?
II. Background Information
III. This Action
    A. Why is EPA staying, reinstating, or revising, as appropriate, 
the regulatory text in specific paragraphs affected by the Fugitive 
Emissions Rule?
    B. Why is EPA issuing an interim rule?
    C. What specific revisions are being made?
IV. Fugitive Emissions Rule Reconsideration
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
VI. Statutory Authority

II. Background Information

    On December 19, 2008, EPA (``we'') issued a final rule revising the 
requirements of the major NSR programs regarding the treatment of 
fugitive emissions (``Fugitive Emissions Rule'') 73 FR 77882. The final 
rule required fugitive emissions to be included in determining whether 
a physical or operational change results in a major modification only 
for sources in industries that have been designated through rulemaking 
under section 302(j) of the Clean Air Act (Act or CAA). Previously, EPA 
rules required that fugitive emissions be included in major 
modification applicability determinations for all source categories. 
The final rule amended all portions of the major NSR program 
regulations: Permit requirements, the PSD program, and the emission 
offset interpretive ruling.
    On February 17, 2009, the Natural Resources Defense Council (NRDC) 
submitted a petition for reconsideration of the December 2008 final 
rule as provided for in CAA 307(d)(7)(B).\1\
---------------------------------------------------------------------------

    \1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
---------------------------------------------------------------------------

    On April 24, 2009, we responded to the February 17, 2009, petition 
by letter indicating that we were convening a reconsideration 
proceeding for the December 2008 rule on inclusion of fugitive 
emissions challenged in the petition and granting a 3-month 
administrative stay of the rule contained in the federal NSR program at 
40 CFR parts 51 and 52. The letter also indicated that we would publish 
a notice of proposed rulemaking ``in the near future'' to address the 
specific issues for which we were granting reconsideration.\2\
---------------------------------------------------------------------------

    \2\ Lisa Jackson, US EPA, EPA-HQ-OAR-2004-0014-0062.
---------------------------------------------------------------------------

    The initial 3-month administrative stay of the Fugitive Emissions 
Rule became effective on September 30, 2009. See 74 FR 50115. An 
interim final rule extending the stay for an additional 3 months became 
effective on December 31, 2009. See 74 FR 65692. An additional 18 month 
stay was finalized on March 31, 2010, and ends on October 3, 2011. See 
75 FR 16012. That stay was put in place to allow sufficient time for 
EPA to propose, take public comment on, and issue a final action 
concerning the inclusion of fugitive emissions in the Federal NSR 
program.

III. This Action

A. Why is EPA staying, reinstating, or revising, as appropriate, the 
regulatory text in specific paragraphs affected by the Fugitive 
Emissions Rule?

    The initial stay of the Fugitive Emissions Rule, put in place on 
September 30, 2009, may have caused confusion as to the scope of the 
stay. In staying the Fugitive Emissions Rule, EPA reinstated the NSR 
regulations as they existed prior to the Fugitive Emissions Rule. In 
particular, we stated: ``To effectuate this stay of the December 19, 
2008, rule, we are reinstating previous provisions on a temporary 
basis.'' See 74 FR at 50115-16. In several cases, however, paragraphs 
of the affected regulations in 40 CFR 51.165, 40 CFR 51.166, 40 CFR 51 
Appendix S, and 40 CFR 52.21 appeared to be stayed in their entirety 
rather than amended to undo the changes made by the Fugitive Emissions 
Rule as intended. The subsequent extensions of the stay used the same 
terms as the stay published on September 30, 2009, and accordingly did 
not correct the ambiguity created by the original promulgation of the 
stay. This action clarifies the regulations to accurately reflect EPA's 
intent to revert back to the regulation text that existed prior to the 
Fugitive Emissions Rule amendments to the Federal NSR regulations.

B. Why is EPA issuing an interim rule?

    We are issuing an interim rule to effectuate a stay of the Fugitive 
Emissions Rule. This interim rule supersedes the stay issued on March 
31, 2010, and thereby corrects ambiguity contained in that stay. EPA is 
using the ``good cause'' exemption under the Administrative Procedure 
Act (APA) to take the actions set forth in this interim rule without 
prior notice and comment. See 5 U.S.C. 553(b)(3)(B). Section 553(b)

[[Page 17551]]

of the APA generally requires that any rule to which it applies be 
issued only after the public has received notice of, and had an 
opportunity to comment on, the proposed rule. However, section 
553(b)(3)(B) exempts from those requirements any rule for which the 
issuing agency for good cause finds that providing prior notice and 
comment would be impracticable, unnecessary, or contrary to the public 
interest. Thus, any rule for which EPA makes such a finding is exempt 
from the notice and comment requirements of section 553(b).
    We believe that the circumstances here provide good cause to take 
the actions set forth in this interim rule without prior notice and 
comment, because providing prior notice and comment would be 
unnecessary and contrary to the public interest.
    With this action, EPA is simply staying the provisions of the 
Fugitive Emissions Rule consistent with our original intent, which we 
believe was broadly understood. We believe that soliciting public 
comment on this interim rule prior to making it effective would be 
contrary to the public interest because it is in the public interest to 
correct the ambiguity contained in the current stay as expeditiously as 
possible to avoid potential confusion regarding the regulatory text. 
The NSR program is a vital component of the Act's regime for protecting 
public health, and it is in the public's interest that the requirements 
of the program be clear and unambiguous.
    EPA is also using the APA's good cause exception to make this 
interim rule immediately effective. See 5 U.S.C. 553(d)(3). Section 
553(d) of the APA generally provides that rules may not take effect 
earlier than 30 days after they are published in the Federal Register. 
However, section 553(d)(3) provides that if the issuing agency has made 
a finding of good cause and has published its reasoning with the rule, 
the rule may take effect earlier. EPA has determined that good cause 
exists to stay, reinstate, and revise, as appropriate, certain 
paragraphs in 40 CFR parts 51 and 52 by interim rule without prior 
notice and comment, because prior notice and comment would be 
unnecessary and contrary to the public interest for the reasons stated 
above. Based on this determination, EPA is making this interim rule 
effective immediately.
    Notwithstanding EPA's ``good cause'' finding, we are providing a 
30-day public comment period for this interim rule, and upon reviewing 
and considering comments received, we will issue a final rule either 
affirming the interim rule or affirming the interim rule with 
revisions.

C. What specific revisions are being made?

    We are issuing this interim rule to:
     Stay the following paragraphs: 40 CFR 51.165(a)(1)(v)(G) 
and (a)(1)(vi)(C)(3), 40 CFR 51.166(b)(2)(v) and (b)(3)(iii)(d), 40 CFR 
51 Appendix S II.A.5(vii), and 40 CFR 52.21 (b)(2)(v) and 
(b)(3)(iii)(c);
     Reinstate the following paragraphs: 40 CFR 51.165(a)(4), 
40 CFR 51.166(i)(1)(ii), 40 CFR 51 Appendix S II.F, and 40 CFR 
52.21(i)(1)(vii); and
     Revise the following paragraphs to revert back to the 
regulatory text that existed prior to the Fugitive Emissions Rule 
amendments: 40 CFR 51.165(a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166(a)(7)(iv)(b), 
(b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), 
(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii), (r)(6)(iv), and 
(w)(4)(i)(d); 40 CFR 51 Appendix S II.A.6(iii), II.A.9, II.A.24(ii)(b), 
II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), 
II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d); and 40 CFR 
52.21(a)(2)(iv)(b), (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), 
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), 
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d).
    The overall effect of this action is to revert the treatment of 
fugitive emissions in applicability determinations to the approach that 
applied prior to the Fugitive Emissions Rule on an interim basis, while 
EPA completes the reconsideration.

IV. Fugitive Emissions Rule Reconsideration

    Following the public comment period, EPA will issue a final rule 
either affirming the interim rule or affirming the interim rule with 
changes. The final rule will be in effect until EPA completes its 
reconsideration of the Fugitive Emissions Rule. We intend to propose 
and finalize a rule based on the results of the reconsideration by 
October 4, 2012.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under 
Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), because it 
does not raise novel legal or policy issues. Accordingly, this action 
is not subject to review under EO 12866.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Burden is defined at 5 CFR 1320.3(b). This action only corrects 
inadvertent errors in the existing stay of the regulations at 40 CFR 
parts 51 and 52 concerning the inclusion of fugitive emissions and 
further stays the regulations until EPA completes its reconsideration.
    The Office of Management and Budget (OMB) has previously approved 
the information collection requirements contained in the existing 
regulations (40 CFR parts 51 and 52) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0003. The OMB control numbers for EPA's regulations 
in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    This interim rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the APA or any other statute. This rule is not subject to notice and 
comment requirements under the APA or any other statute because, 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice and comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action only corrects inadvertent errors in the existing 
stay of the regulations at 40 CFR parts 51 and 52 concerning the 
inclusion of fugitive emissions and further stays the regulations until 
EPA completes its reconsideration. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

[[Page 17552]]

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in EO 13132. This action only corrects inadvertent errors in 
the existing stay of the regulations at 40 CFR parts 51 and 52 
concerning the inclusion of fugitive emissions and further stays the 
regulations until EPA completes its reconsideration. Thus, EO 13132 
does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in EO 
13175 (65 FR 67249, November 9, 2000). This action will not impose any 
new obligations or enforceable duties on tribal governments. Thus, EO 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to EO 13211 (66 FR 28355, May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this interim rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low income populations because it only corrects 
inadvertent errors in the existing stay of the regulations at 40 CFR 
parts 51 and 52 concerning the inclusion of fugitive emissions and 
further stays the regulations until EPA completes its reconsideration.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary, or contrary to the public interest. This 
determination must be supported by a brief statement, 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and established an effective date of March 30, 
2011. EPA will submit a report containing this rule and other required 
information to the United States Senate, the United States House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

VI. Statutory Authority

    The statutory authority for this action is provided by section 
301(a) of the CAA as amended (42 U.S.C. 7601(a)).

List of Subjects

40 CFR Part 51

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

40 CFR Part 52

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

    Dated: March 10, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, 40 CFR parts 51 and 52 are 
amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401--7671q.


0
2. Section 51.165 is amended as follows:
0
a. The stay of Sec.  51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3), (a)(1)(ix), 
(a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), 
(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), 
(a)(6)(iii), (a)(6)(iv), and (f)(4)(i)(D), published on March 31, 2010 
(75 FR 16012), is lifted.
0
b. Paragraphs (a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), and (a)(1)(xxxv)(D) are revised.
0
c. Paragraph (a)(2)(ii)(B) is revised.
0
d. Temporary paragraph (a)(4), is removed.
0
e. A new paragraph (a)(4), is added.
0
f. Paragraphs (a)(6)(iii) and (a)(6)(iv) are revised.
0
g. Paragraph (f)(4)(i)(D) is revised.
0
h. Paragraphs (a)(1)(v)(G) and (a)(1)(vi)(C)(3) are stayed.

[[Page 17553]]

Sec.  51.165  Permit requirements.

    (a) * * *
    (1) * * *
    (ix) Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent or other functionally 
equivalent opening.
* * * * *
    (xxviii) * * *
    (B) * * *
    (2) Shall include fugitive emissions to the extent quantifiable, 
and emissions associated with startups, shutdowns, and malfunctions; 
and
* * * * *
    (4) In lieu of using the method set out in paragraphs 
(a)(1)(xxviii)(B)(1) through (3) of this section, may elect to use the 
emissions unit's potential to emit, in tons per year, as defined under 
paragraph (a)(1)(iii) of this section.
* * * * *
    (xxxv) * * *
    (A) * * *
    (1) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (B) * * *
    (1) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (C) For a new emissions unit, the baseline actual emissions for 
purposes of determining the emissions increase that will result from 
the initial construction and operation of such unit shall equal zero; 
and thereafter, for all other purposes, shall equal the unit's 
potential to emit.
    (D) For a PAL for a major stationary source, the baseline actual 
emissions shall be calculated for existing electric utility steam 
generating units in accordance with the procedures contained in 
paragraph (a)(1)(xxxv)(A) of this section, for other existing emissions 
units in accordance with the procedures contained in paragraph 
(a)(1)(xxxv)(B) of this section, and for a new emissions unit in 
accordance with the procedures contained in paragraph (a)(1)(xxxv)(C) 
of this section.
* * * * *
    (2) * * *
    (ii) * * *
    (B) The procedure for calculating (before beginning actual 
construction) whether a significant emissions increase (i.e., the first 
step of the process) will occur depends upon the type of emissions 
units being modified, according to paragraphs (a)(2)(ii)(C) through (F) 
of this section. The procedure for calculating (before beginning actual 
construction) whether a significant net emissions increase will occur 
at the major stationary source (i.e., the second step of the process) 
is contained in the definition in paragraph (a)(1)(vi) of this section. 
Regardless of any such preconstruction projections, a major 
modification results if the project causes a significant emissions 
increase and a significant net emissions increase.
* * * * *
    (4) Each plan may provide that the provisions of this paragraph do 
not apply to a source or modification that would be a major stationary 
source or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and the source does not belong to 
any of the following categories:
    (i) Coal cleaning plants (with thermal dryers);
    (ii) Kraft pulp mills;
    (iii) Portland cement plants;
    (iv) Primary zinc smelters;
    (v) Iron and steel mills;
    (vi) Primary aluminum ore reduction plants;
    (vii) Primary copper smelters;
    (viii) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (ix) Hydrofluoric, sulfuric, or citric acid plants;
    (x) Petroleum refineries;
    (xi) Lime plants;
    (xii) Phosphate rock processing plants;
    (xiii) Coke oven batteries;
    (xiv) Sulfur recovery plants;
    (xv) Carbon black plants (furnace process);
    (xvi) Primary lead smelters;
    (xvii) Fuel conversion plants;
    (xviii) Sintering plants;
    (xix) Secondary metal production plants;
    (xx) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (xxi) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (xxii) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (xxiii) Taconite ore processing plants;
    (xxiv) Glass fiber processing plants;
    (xxv) Charcoal production plants;
    (xxvi) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (xxvii) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
    (6) * * *
    (iii) The owner or operator shall monitor the emissions of any 
regulated NSR pollutant that could increase as a result of the project 
and that is emitted by any emissions units identified in paragraph 
(a)(6)(i)(B) of this section; and calculate and maintain a record of 
the annual emissions, in tons per year on a calendar year basis, for a 
period of 5 years following resumption of regular operations after the 
change, or for a period of 10 years following resumption of regular 
operations after the change if the project increases the design 
capacity or potential to emit of that regulated NSR pollutant at such 
emissions unit.
    (iv) If the unit is an existing electric utility steam generating 
unit, the owner or operator shall submit a report to the reviewing 
authority within 60 days after the end of each year during which 
records must be generated under paragraph (a)(6)(iii) of this section 
setting out the unit's annual emissions during the year that preceded 
submission of the report.
* * * * *
    (f) * * *
    (4) * * *
    (i) * * *
    (D) The PAL shall include fugitive emissions, to the extent 
quantifiable, from all emissions units that emit or have the potential 
to emit the PAL pollutant at the major stationary source.
* * * * *
0
3. Section 51.166 is amended as follows:
0
a. The stay of Sec.  51.166(a)(7)(iv)(b), (b)(2)(v), (b)(3)(iii)(c), 
(b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), 
(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), 
and (w)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted.
0
b. Paragraph (a)(7)(iv)(b) is revised.
0
c. Paragraphs (b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), 
(b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), and (b)(47)(iv) are 
revised.
0
d. Temporary paragraph (i)(1)(ii) is removed.
0
e. A new paragraph (i)(1)(ii) is added.
0
f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised.
0
g. Paragraph (w)(4)(i)(d) is revised.
0
h. Paragraphs (b)(2)(v) and (b)(3)(iii)(d) are stayed.

[[Page 17554]]

Sec.  51.166  Prevention of significant deterioration of air quality.

    (a) * * *
    (7) * * *
    (iv) * * *
    (b) The procedure for calculating (before beginning actual 
construction) whether a significant emissions increase (i.e., the first 
step of the process) will occur depends upon the type of emissions 
units being modified, according to paragraphs (a)(7)(iv)(c) through (f) 
of this section. The procedure for calculating (before beginning actual 
construction) whether a significant net emissions increase will occur 
at the major stationary source (i.e., the second step of the process) 
is contained in the definition in paragraph (b)(3) of this section. 
Regardless of any such preconstruction projections, a major 
modification results if the project causes a significant emissions 
increase and a significant net emissions increase.
* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (c) The increase or decrease in emissions did not occur at a Clean 
Unit, except as provided in paragraphs (t)(8) and (u)(10) of this 
section.
* * * * *
    (20) Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other functionally 
equivalent opening.
* * * * *
    (40) * * *
    (ii) * * *
    (b) Shall include fugitive emissions to the extent quantifiable, 
and emissions associated with startups, shutdowns, and malfunctions; 
and
* * * * *
    (d) In lieu of using the method set out in paragraphs 
(b)(40)(ii)(a) through (c) of this section, may elect to use the 
emissions unit's potential to emit, in tons per year, as defined under 
paragraph (b)(4) of this section.
* * * * *
    (47) * * *
    (i) * * *
    (a) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (ii) * * *
    (a) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (iii) For a new emissions unit, the baseline actual emissions for 
purposes of determining the emissions increase that will result from 
the initial construction and operation of such unit shall equal zero; 
and thereafter, for all other purposes, shall equal the unit's 
potential to emit.
    (iv) For a PAL for a stationary source, the baseline actual 
emissions shall be calculated for existing electric utility steam 
generating units in accordance with the procedures contained in 
paragraph (b)(47)(i) of this section, for other existing emissions 
units in accordance with the procedures contained in paragraph 
(b)(47)(ii) of this section, and for a new emissions unit in accordance 
with the procedures contained in paragraph (b)(47)(iii) of this 
section.
* * * * *
    (i) * * *
    (1) * * *
    (ii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and such source does not belong 
to any of the following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
    (r) * * *
    (6) * * *
    (iii) The owner or operator shall monitor the emissions of any 
regulated NSR pollutant that could increase as a result of the project 
and that is emitted by any emissions unit identified in paragraph 
(r)(6)(i)(b) of this section; and calculate and maintain a record of 
the annual emissions, in tons per year on a calendar year basis, for a 
period of 5 years following resumption of regular operations after the 
change, or for a period of 10 years following resumption of regular 
operations after the change if the project increases the design 
capacity or potential to emit of that regulated NSR pollutant at such 
emissions unit.
    (iv) If the unit is an existing electric utility steam generating 
unit, the owner or operator shall submit a report to the reviewing 
authority within 60 days after the end of each year during which 
records must be generated under paragraph (r)(6)(iii) of this section 
setting out the unit's annual emissions during the calendar year that 
preceded submission of the report.
* * * * *
    (w) * * *
    (4) * * *
    (i) * * *
    (d) The PAL shall include fugitive emissions, to the extent 
quantifiable, from all emissions units that emit or have the potential 
to emit the PAL pollutant at the major stationary source.
* * * * *

0
4. Appendix S. to Part 51 is amended as follows:
0
a. The stay of appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9, 
II.A.24(ii)(b), II.A.24(ii)(d), II.A. 30(i)(a), II.A.30(ii)(a), 
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) 
published on March 31, 2010 (75 FR 16012) is lifted.
0
b. Paragraphs II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), 
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), and II.A.30(iv) are 
revised.
0
c. Temporary paragraph II.F is removed.
0
d. A new paragraph II.F is added.

[[Page 17555]]

0
e. Paragraphs IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) are revised.
0
f. Paragraph II.A.5(vii) is stayed.

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *
    II. * * *
    A. * * *
    6. * * *
    (iii) An increase or decrease in actual emissions is creditable 
only if the reviewing authority has not relied on it in issuing a 
permit for the source under this Ruling, which permit is in effect 
when the increase in actual emissions from the particular change 
occurs.
* * * * *
    9. Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other 
functionally equivalent opening.
* * * * *
    24. * * *
    (ii) * * *
    (b) Shall include fugitive emissions to the extent quantifiable, 
and emissions associated with startups, shutdowns, and malfunctions; 
and
* * * * *
    (d) In lieu of using the method set out in paragraphs 
II.A.24(ii)(a) through (c) of this Ruling, may elect to use the 
emissions unit's potential to emit, in tons per year, as defined 
under paragraph II.A.3 of this Ruling.
* * * * *
    30. * * *
    (i) * * *
    (a) The average rate shall include fugitive emissions to the 
extent quantifiable, and emissions associated with startups, 
shutdowns, and malfunctions.
* * * * *
    (ii) * * *
    (a) The average rate shall include fugitive emissions to the 
extent quantifiable, and emissions associated with startups, 
shutdowns, and malfunctions.
* * * * *
    (iii) For a new emissions unit, the baseline actual emissions 
for purposes of determining the emissions increase that will result 
from the initial construction and operation of such unit shall equal 
zero; and thereafter, for all other purposes, shall equal the unit's 
potential to emit.
    (iv) For a PAL for a major stationary source, the baseline 
actual emissions shall be calculated for existing electric utility 
steam generating units in accordance with the procedures contained 
in paragraph II.A.30(i) of this Ruling, for other existing emissions 
units in accordance with the procedures contained in paragraph 
II.A.30(ii) of this Ruling, and for a new emissions unit in 
accordance with the procedures contained in paragraph II.A.30(iii) 
of this Ruling.
* * * * *
    F. Fugitive emission sources. Section IV.A. of this Ruling shall 
not apply to a source or modification that would be a major 
stationary source or major modification only if fugitive emissions, 
to the extent quantifiable, are considered in calculating the 
potential to emit of the stationary source or modification and such 
source does not belong to any of the following categories:
    (1) Coal cleaning plants (with thermal dryers);
    (2) Kraft pulp mills;
    (3) Portland cement plants;
    (4) Primary zinc smelters;
    (5) Iron and steel mills;
    (6) Primary aluminum ore reduction plants;
    (7) Primary copper smelters;
    (8) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (9) Hydrofluoric, sulfuric, or nitric acid plants;
    (10) Petroleum refineries;
    (11) Lime plants;
    (12) Phosphate rock processing plants;
    (13) Coke oven batteries;
    (14) Sulfur recovery plants;
    (15) Carbon black plants (furnace process);
    (16) Primary lead smelters;
    (17) Fuel conversion plants;
    (18) Sintering plants;
    (19) Secondary metal production plants;
    (20) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol 
by natural fermentation included in NAICS codes 325193 or 312140;
    (21) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (22) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (23) Taconite ore processing plants;
    (24) Glass fiber processing plants;
    (25) Charcoal production plants;
    (26) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (27) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
    IV. * * *
    I. * * *
    1. * * *
    (ii) The procedure for calculating (before beginning actual 
construction) whether a significant emissions increase (i.e., the 
first step of the process) will occur depends upon the type of 
emissions units being modified, according to paragraphs IV.I.1(iii) 
through (v) of this Ruling. The procedure for calculating (before 
beginning actual construction) whether a significant net emissions 
increase will occur at the major stationary source (i.e., the second 
step of the process) is contained in the definition in paragraph 
II.A.6 of this Ruling. Regardless of any such preconstruction 
projections, a major modification results if the project causes a 
significant emissions increase and a significant net emissions 
increase.
* * * * *
    J. * * *
    3. The owner or operator shall monitor the emissions of any 
regulated NSR pollutant that could increase as a result of the 
project and that is emitted by any emissions units identified in 
paragraph IV.J.1(ii) of this Ruling; and calculate and maintain a 
record of the annual emissions, in tons per year on a calendar year 
basis, for a period of 5 years following resumption of regular 
operations after the change, or for a period of 10 years following 
resumption of regular operations after the change if the project 
increases the design capacity or potential to emit of that regulated 
NSR pollutant at such emissions unit.
    4. If the unit is an existing electric utility steam generating 
unit, the owner or operator shall submit a report to the reviewing 
authority within 60 days after the end of each year, during which 
records must be generated under paragraph IV.J.3 of this Ruling 
setting out the unit's annual emissions during the year that 
preceded submission of the report.
* * * * *
    K. * * *
    4. * * *
    (i) * * *
    (d) The PAL shall include fugitive emissions, to the extent 
quantifiable, from all emissions units that emit or have the 
potential to emit the PAL pollutant at the major stationary source.
* * * * *

PART 52--[AMENDED]

0
5. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
6. Section 52.21 is amended as follows:
0
a. The stay of Sec.  52.21 (a)(2)(iv)(b), (b)(2)(v), (b)(3)(iii)(b), 
(b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a), 
(b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and 
(aa)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted.
0
b. Paragraph (a)(2)(iv)(b) is revised.
0
c. Paragraphs (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), 
(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv) are 
revised.
0
d. Temporary paragraph (i)(1)(vii) is removed.
0
e. A new paragraph (i)(1)(vii) is added.
0
f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised.
0
g. Paragraph (aa)(4)(i)(d) is revised.
0
h. Paragraphs (b)(2)(v) and (b)(3)(iii)(c) are stayed.


Sec.  52.21  Prevention of significant deterioration of air quality.

    (a) * * *
    (2) * * *
    (iv) * * *
    (b) The procedure for calculating (before beginning actual 
construction) whether a significant emissions increase (i.e., the first 
step of the process) will occur depends upon the type of emissions 
units being modified, according to paragraphs (a)(2)(iv)(c) through (f) 
of this section. The procedure for calculating (before

[[Page 17556]]

beginning actual construction) whether a significant net emissions 
increase will occur at the major stationary source (i.e., the second 
step of the process) is contained in the definition in paragraph (b)(3) 
of this section. Regardless of any such preconstruction projections, a 
major modification results if the project causes a significant 
emissions increase and a significant net emissions increase.
* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (b) The increase or decrease in emissions did not occur at a Clean 
Unit except as provided in paragraphs (x)(8) and (y)(10) of this 
section.
* * * * *
    (20) Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other functionally 
equivalent opening.
* * * * *
    (41) * * *
    (ii) * * *
    (b) Shall include fugitive emissions to the extent quantifiable, 
and emissions associated with startups, shutdowns, and malfunctions; 
and
* * * * *
    (d) In lieu of using the method set out in paragraphs 
(a)(41)(ii)(a) through (c) of this section, may elect to use the 
emissions unit's potential to emit, in tons per year, as defined under 
paragraph (b)(4) of this section.
* * * * *
    (48) * * *
    (i) * * *
    (a) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (ii) * * *
    (a) The average rate shall include fugitive emissions to the extent 
quantifiable, and emissions associated with startups, shutdowns, and 
malfunctions.
* * * * *
    (iii) For a new emissions unit, the baseline actual emissions for 
purposes of determining the emissions increase that will result from 
the initial construction and operation of such unit shall equal zero; 
and thereafter, for all other purposes, shall equal the unit's 
potential to emit.
    (iv) For a PAL for a stationary source, the baseline actual 
emissions shall be calculated for existing electric utility steam 
generating units in accordance with the procedures contained in 
paragraph (b)(48)(i) of this section, for other existing emissions 
units in accordance with the procedures contained in paragraph 
(b)(48)(ii) of this section, and for a new emissions unit in accordance 
with the procedures contained in paragraph (b)(48)(iii) of this 
section.
* * * * *
    (i) * * *
    (1) * * *
    (vii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and the source does not belong to 
any of the following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
    (r) * * *
    (6) * * *
    (iii) The owner or operator shall monitor the emissions of any 
regulated NSR pollutant that could increase as a result of the project 
and that is emitted by any emissions unit identified in paragraph 
(r)(6)(i)(b) of this section; and calculate and maintain a record of 
the annual emissions, in tons per year on a calendar year basis, for a 
period of 5 years following resumption of regular operations after the 
change, or for a period of 10 years following resumption of regular 
operations after the change if the project increases the design 
capacity or potential to emit that regulated NSR pollutant at such 
emissions unit.
    (iv) If the unit is an existing electric utility steam generating 
unit, the owner or operator shall submit a report to the Administrator 
within 60 days after the end of each year during which records must be 
generated under paragraph (r)(6)(iii) of this section setting out the 
unit's annual emissions during the calendar year that preceded 
submission of the report.
* * * * *
    (aa) * * *
    (4) * * *
    (i) * * *
    (d) The PAL shall include fugitive emissions, to the extent 
quantifiable, from all emissions units that emit or have the potential 
to emit the PAL pollutant at the major stationary source.
* * * * *

[FR Doc. 2011-6670 Filed 3-29-11; 8:45 am]
BILLING CODE 6560-50-P